On certification to the Superior Court, Appellate Division.
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the court was delivered by
In Ruth v. Fenchel, 21 N.J. 171 (1956), we held that learned treatises may be admitted for impeachment purposes on cross-examination if the expert witness acknowledges them as recognized and standard authorities in the field. In this medical malpractice case, the defense experts acknowledged the reliability of plaintiffs' proffered medical texts but refused to state that those texts were authoritative. Relying on Ruth, the trial court prevented plaintiffs from using medical literature to rebut the defense experts' testimony. We conclude that the defense experts implicitly conceded the authoritativeness of the proffered learned treatises and that those treatises were admissible under the Ruth standard.
We also hold that Ruth's restrictions on the use of learned treatises interfere with the adversarial and truth-seeking aspects of trial. Thus, we adopt a new learned-treatise rule that mirrors the federal rule, permitting a text to be qualified as a learned treatise by expert testimony or by judicial notice rather than solely by the cross-examined expert. Moreover, the contents of learned treatises may be introduced as substantive evidence by experts on both direct and cross examination.
Plaintiff John Michael Jacober was born prematurely at St. Peter's Medical Center on November 27, 1981, after only twenty-five to twenty-eight weeks in gestation. In 1981, a newborn of Jacober's prematurity had a survival rate between ten and twenty-one percent. At birth, Jacober weighed approximately 730 grams (one pound ten ounces).
In order to monitor Jacober's blood pressure and blood gases, defendants decided to insert a catheter into his aorta through an umbilical artery. The nurse prepared two surgical trays, one with a 3.5 French catheter (3.5 catheter) and the other with a larger 5.0 French catheter (5.0 catheter). According to the nurse's notes, Dr. Philomena Dias, a first-year intern, inserted the 5.0 catheter into Jacober's umbilical artery but removed it when Jacober's right leg became "white and blanched," indicating circulatory problems. Defendant Dr. Maria Fort, a third-year resident, then performed another umbilical catheterization employing the same-sized catheter. When Jacober's right leg turned "dusky," the catheter was again withdrawn. Dr. Robert Simon, a Fellow in Neonatology, was present during the second catheterization. When Dr. Simon performed a third catheterization and the same leg darkened, the doctors abandoned the procedure and employed alternative monitoring techniques.
After that third catheterization, Jacober's right leg suffered from diminished circulation. As a result, the right toes auto-amputated from dry gangrene and thereafter the right leg grew unevenly. When he was ten years old, Jacober's right leg was misshapen and six inches shorter than the left leg. One doctor projected a twelve-inch discrepancy in the length of Jacober's legs by the time he is full-grown, a condition that may require amputation.
Jacober brought the present medical malpractice suit by his guardians ad litem against St. Peter's Medical Center and Doctors Dias, Fort, Feld, and Simon. At trial, Jacober set forth three grounds for liability: (1) Dr. Steven Feld, the obstetrician who had delivered Jacober, had failed to ensure that the hospital's senior neonatologist was present during the catheterizations; (2) Doctors Dias, Fort, and Simon had acted negligently in using the larger 5.0 catheter; and (3) Doctors Fort and Simon had repeated the umbilical catheterization despite Jacober's adverse reaction to the procedure.
Jacober's expert, Dr. Ronald E. Hoekstra, testified that defendants had deviated from the accepted standards of medical care by using the larger 5.0 catheter despite Jacober's low birth weight. He explained that larger catheters generally pose a greater risk of vasospasm (constriction) and thromboses (blood clots), either of which can block blood flow to an extremity. He also testified that defendants erred by attempting two more catheterizations after the first one had failed.
Defendants Dias and Fort presented Dr. Peter Auld as an expert in neonatology and pediatrics. Auld testified that a physician performing an umbilical catheterization should use "the biggest catheter possible" because "if you put in too small a catheter it clots all the time, and it's a pain, and you can't use it." He stated that a 3.5 catheter "would have been less desirable" than the 5.0 catheter used.
Defendant Dr. Simon testified that the appropriate size of the catheter depends not on the infant's weight but rather on the size of the infant's umbilical blood vessels. He also stated, as had Dr. Auld, that doctors should use the largest catheter possible. Although Dr. Simon could not recall performing the third catheterization or the size of the catheter used, he denied that he would have inserted the catheter if Jacober's leg had displayed any signs of circulatory complication.
Dr. Lawrence Skolnick testified as an expert in pediatrics and neonatology on behalf of defendant Simon. He stated that Dr. Simon had not deviated from the standards of the medical profession by performing a third catheterization with a 5.0 catheter. He also stated that "you basically put in the largest catheter that the artery will accommodate." He noted that the 5.0 catheter is less likely to clot. Moreover, he emphasized that Jacober's injury was not related to the size of the catheter, but rather to the fact that his artery remained in spasm even after the catheter had been removed.
Although defendants Fort and Dias did not testify at trial, both sides read into the record portions of their depositions. In her deposition, Dias testified that she did not recall what size catheter she had used on Jacober. Dr. Dias also acknowledged that it was "textbook" procedure at the hospital to have a 3.5 catheter on a tray for infants weighing less than 1500 grams. She also admitted that the 3.5 catheter would be the proper catheter to use on infants of Jacober's size.
In the course of trial, plaintiffs' counsel attempted to use medical literature in various ways to support the claim that the larger 5.0 catheter had caused Jacober's injury. Counsel sought to introduce Klaus and Fanaroff's medical manual, partly because Dr. Dias had asserted that that text informed the hospital's practice of using 3.5 catheters on infants weighing less than 1500 grams. In that text, the authors state that umbilical catheterization should be performed with "[a] 3.5 (infants Care of the High Risk Neonate 16 (2d ed. 1979). Counsel also attempted to introduce medical literature demonstrating a causal link between catheter size and medical injury. One of the proffered texts states that complications from umbilical catheterization "relate to trauma during insertion, the duration of catheterization, the size of the catheters used * * * ." Dr. L. Stanley James, "Emergencies in the Delivery Room," in Neonatal-Perinatal Medicine 128, 137 (Richard E. Behrman ed., 2d ed. 1977). The author also observes that blanching of the limb is "directly related to the relative size of the catheter in the aorta." Id. at 138. A journal article arrived at a similar Conclusion:
There is no doubt about the value of intravascular catheterization for diagnosis and treatment, yet the procedure cannot be considered harmless. A variety of precautions should be taken to reduce the high incidence and the severity of the complications * * * . Keeping the size of the catheter as small as practicable, the duration of catheterization and the length of the inserted portion as short as possible, and manipulation infrequent should limit the degree and extent of trauma * * * .
[H. Joachim Wigger, et al., Thromboses Due to Catheterization in Infants and Children, 76 The Journal of Pediatrics 1, 10 (1970) (emphasis added).]
At the outset of trial, plaintiffs' counsel announced that his medical expert intended to testify that the medical literature reflects the nearly unanimous opinion that 3.5 catheters should be used on premature infants of Jacober's weight and that some of the literature relates catheter size to the risk of injury. Sustaining the defense's objections, the court ruled that "it's my understanding of our law that you may not use medical literature to support the opinion of your expert." Moreover, the court held that it would permit medical literature to be introduced by plaintiffs' counsel only if a defense expert "agrees that some treatise is authoritative. And then you can question him about the contents."
Plaintiffs' counsel also attempted to use medical literature during cross-examination to impeach the defense experts, Dr. Auld and Dr. Skolnick, and defendant Dr. Simon. However, none of them declared the proffered medical texts authoritative. Plaintiffs' counsel first attempted to have Dr. Auld recognize the Klaus and Fanaroff text as authoritative so it could be admitted as a learned treatise.
Q. Am I right, Doctor, that what you are telling us is that you do not accept this textbook as one of the standard texts in the field of neonatology?
A. It's a standard text, but I don't think it's authoritative, if that's what you're getting at.
Q. * * * Do you accept your own writing as authoritative?
Q. So that, essentially, I gather what you're saying is that if I were to ask you if anything that was written in medical literature is authoritative on the subject in which it addresses, you would have to say no?
A. It depends what you mean by authoritative. If you mean this is the way it's supposed to be done--
Q. Generally accepted in the profession.
A. I don't believe that. I think those textbooks are one man's opinion. They're constantly revised, they're never up to date, and I don't believe that they're that type of authority. Medicine doesn't recognize authorities this way.
Q. * * * Are you aware of any research article by researchers in the field, that have attempted to show whether or not larger catheters are more likely or less likely to cause a risk of thrombus or embolus in a high risk neonate?
Q. Do you know whether or not researchers have addressed the issue that connect catheter size to ...